Comfort v Lord Chancellor's Department

The Court of Appeal allowed the appellant's appeal against the Employment Tribunal's findings on constructive dismissal and redundancy because the Tribunal failed to address a materially important dispute of fact. The Tribunal did not make findings or explain its resolution of the conflict between the appellant's account of two meetings with Mr Risk and the respondent's contemporaneous notes, including their authenticity. The court emphasised that a tribunal must deal with principal controversial points and give reasons when such points are material to the outcome, citing authorities on the duty to give adequate reasons. Because the factual dispute was likely to be decisive on constructive dismissal and redundancy, the failure amounted to an error of law and the case was remitted for rehearing before a differently constituted Employment Tribunal.

Background and parties: The appellant, Wendy Comfort, had been employed by the Lord Chancellor's Department since 1976 and worked as a Higher Executive Officer in the Cardiff Group Manager's Office. Following a decision to merge the Swansea and Cardiff Groups of Courts, disputes arose about post allocations and training, and the appellant resigned on 26 April 2001.

Nature of the claim: The appellant brought claims of disability discrimination, constructive (unfair) dismissal, and breach of contract, alleging that events around two meetings with Mr Risk in September and October 2000 and the respondent's handling of post allocation and training led to constructive dismissal and redundancy.

Procedural posture: The Employment Tribunal heard the matter and on 21 May 2002 found that the appellant had a disability for the purposes of the Disability Discrimination Act 1995 but that there was no unlawful discrimination, no constructive dismissal, no redundancy and no breach of contract (including a consideration of a mobility clause and section 139(1) of the Employment Rights Act 1996). The appellant appealed to the Employment Appeal Tribunal, which on 2 July 2003 dismissed the appeal. Permission to appeal to the Court of Appeal was later granted.

Issues framed:

• Whether the Employment Tribunal gave adequate reasons and made necessary findings on the disputed facts concerning meetings in September and October 2000 and the authenticity of notes said to have been contemporaneously made by Mr Risk.
• Whether the Tribunal should have recalled Mr Risk or otherwise dealt with apparent discrepancies in the evidence.
• Whether the Tribunal erred in law in its approach to redundancy and the contractual consequences of a mobility clause.

Court's reasoning: The Court of Appeal focused on the first issue. It considered authorities requiring tribunals to identify and follow through principal controversial points and to give reasons when such points are material to the decision. The court concluded that the dispute over what was said at the September and October meetings, and the authenticity of the respondent's notes, was a principal and potentially determinative factual issue bearing directly on the constructive dismissal and redundancy claims. Because the Employment Tribunal did not resolve that dispute or explain why it had become otiose, the Tribunal committed an error of law. The Court of Appeal therefore allowed the appeal, set aside the Tribunal's and EAT's decisions on constructive dismissal and redundancy, and remitted the case to a differently constituted Employment Tribunal for rehearing (with expedition), leaving the disability discrimination claim out of the remit for rehearing.

Appeal allowed. The Court of Appeal held that the Employment Tribunal erred in law by failing to resolve and give reasons for its resolution of a central factual dispute about meetings in September and October 2000 and the authenticity of notes relied on by the respondent. That failure was material to the findings on constructive dismissal and redundancy and required a remitter to a differently constituted Employment Tribunal for rehearing.

The claim was first heard by an Employment Tribunal sitting in Cardiff (decision promulgated 21 May 2002). The appellant appealed to the Employment Appeal Tribunal, which dismissed the appeal by order dated 2 July 2003. Permission to appeal to the Court of Appeal was granted by Mummery LJ. The Court of Appeal allowed the appeal and remitted the case to a differently constituted Employment Tribunal for rehearing (this judgment: [2004] EWCA Civ 349).